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Bar News - April 6, 2007

Supreme Court Receives Ethics Code Proposal



The NH Supreme Court Advisory Committee on Rules has recommended the adoption of a top-to-bottom revision of the Rules of Professional Conduct. The Supreme Court is expected to solicit public comment on the proposal in early April. It could be the last chance for the legal community to comment before its adoption.


The proposal, available as a 158-page PDF at the state courts’ Web site at, has been in the works since 2001. It was developed by the NHBA Ethics Committee at the request of the court’s Rules Committee which asked the group to review New Hampshire’s ethics rules in light of revisions made in 2000 to the ABA Model Rules of Professional Conduct. The Ethics Committee’s draft incorporated changes in caselaw as well as rewording and added “Comments” to clarify problems in interpreting the existing RPC, which had last been updated in 1986.  


According to a letter dated March 15, 2007, from Supreme Court Deputy Clerk (and Rules Committee liaison) David Peck transmitting the proposal to the Court, “The Ethics Committee spent countless hours in researching, writing and discussing the proposals, including obtaining comment from attorneys by posting drafts on the Bar’s Web site.  After the Ethics Committee’s report was presented to the Rules Committee in February 2006, the Committee had two public comment periods on the proposals, and a public hearing on December 13, 2006.” 


Peck noted that a number of comments were received, and some of those concerns were addressed in the Rules Committee’s deliberations and in amendments made to the proposal before sending it on to the Court.


The following are highlights of some of the changes. Attorneys are urged to review the entire proposal to consider the implications of changes on their areas of practice.


A number of the changes were influenced by the work of the ABA review of the Model Rules, including:


  • Expansion of discretionary disclosure. In the wake of several corporate scandals nationwide, the ABA has greatly expanded the discretion for attorneys to violate client confidentiality to prevent harm to others. The NH proposal expands discretion over the current rules, although not to the extent advocated by the ABA.
  • Client consent standard wording. Adopting the ABA Model Rules standard, attorneys would have to meet a more stringent “informed consent” standard, instead of the “consent after consultation” standard in the current NH RPC. 


Other rules changes specific to New Hampshire include:


  • Fees: (Rule 1.5 f) This rule has been rewritten to allow for a division of fees between clients from different law firms if either the fees are divided “in reasonable proportion to the services performed or responsibility or risk assumed by each,” or “based on an agreement with the referring lawyer” (also known as a “naked referral”). In either case, clients must agree to the fee division in writing, and the total fee paid by the client cannot be increased due to the fee division arrangement.
  • Conflicts: (Rule 1.7) Both in the proposed rule and in several paragraphs of Comments, greater guidance is provided than exists in the current rule on when an attorney can or cannot represent different clients in the same matter.
  • Safekeeping of property. (Rule 1.15) Several parts of this rule have been rewritten, including the significant (and controversial) addition of Rule 1.15 (d): “A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.” Several attorneys, including the president of the NH Criminal Defense Attorneys Association, objected to this language, contending that the phrase “as fees are earned’ would be problematic for attorneys who primarily operate with advance retainers and need to access funds from the client before significant actions have been taken in the case. The Comment to this rule runs several paragraphs, and discusses the difficulties of interpretation that may arise as to when the fees in the trust account have been “earned.”
  • Sale of law practice allowed. (Rule 1.17) The proposal creates a new Rule 1.17, following the guidance of the ABA’s Model Rules, governing the sale of a law practice, not currently allowed under the NH RPC.
  • Greater attorney accountability for misstatements in court. (Rule 3.3 ) New language for Rule 3.3 (Candor to the Court) heightens attorneys’ duties to prevent or correct all misstatements (not just those that are “material), and clarifies remedial measures required when previously submitted evidence is discovered to be false.
  • Trial Publicity. (Rule 3.6) For attorneys involved in high-profile cases covered by the news media, the rewritten language in this Rule should be read carefully.  The Rule itself contains examples of comments that “ more likely than not” might have a prejudicial effect, while section (d) allows an attorney to make a statement that “ a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.”
  • Allows conflict “screening” of lawyers in private practice.  Allows law firms greater liberty to take on clients with interests adverse to those of “prospective” clients who are not represented by the firm but have spoken with an attorney in the firm; as long as the attorney who was consulted is insulated from those working on the case. Also, the new rules would allow law firms the ability—with appropriate “firewall” safeguards—to represent clients even if a member of the firm had previously (at another firm) represented someone with interests adverse to that client.
  • Multijurisdictional practice. (Rule 5.5) The Court has already acted to approve a new Rule 5.5 that allows lawyers admitted in other states (and in good standing there) to provide limited services in NH, using the “safe harbor” language provided in the ABA Model Rules, which would provide reciprocity for NH attorneys providing limited services in other jurisdictions. The Rules Committee proposal does recommend repeal of paragraph (e) due to some misleading language.   

The Ethics Committee also drafted, in some cases, extensive New Hampshire Comments to provide insight into the rules language. In its submission to the Supreme Court, the Rules Committee said that it was not recommending “adoption of the comments as part of the rules.  As explained in the Statement of Purpose, the comments are intended to be interpretive, not mandatory.”



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